In the News
CalMatters: Dems ignore voters’ decisions
By Dan Walters
One of the many clashes occurred 31 years ago, when two competing ballot measures, Propositions 68 and 73, tested voter sentiment on providing public funds to candidates for office, a long-sought goal of Common Cause and other self-described political reform groups.
While both 1988 initiatives purported to limit campaign contributions, Proposition 68 created a mechanism for public financing of campaigns while Proposition 73 amended the state’s Political Reform Act to prohibit candidates from accepting public funds.
Both passed handily, but Proposition 73 had a higher margin of victory, so its prohibition on public financing prevailed.
The issue was joined again in 2006, when proponents of public financing, led by the California Nurses Association, placed Proposition 89 on the ballot. It specifically authorized public campaign financing, along with a corporate tax hike to finance it.
Business and anti-tax groups opposed the measure and both sides spent virtually identical sums, nearly $6 million each, on the campaign, but by an overwhelming 3-to-1 margin, Proposition 89 was rejected.
A decade later, in 2016, proponents of public financing took another shot, but instead of asking voters to overturn Proposition 73’s ban, they sponsored Senate Bill 1107, an end-run around the ban authorizing state and local governments to provide funds to candidates.
Former Gov. Jerry Brown, who sponsored the original Political Reform Act as a candidate for governor in 1974, signed SB 1107 and public financing opponents, led by the Howard Jarvis Taxpayers Association, immediately challenged it in court, contending that it violated Proposition 73.
Sacramento Superior Court Judge Timothy Frawley agreed with the opponents and the state appealed to the 3rd District Court of Appeal.
Late last month, the three-member appellate panel ruled unanimously to uphold Frawley, saying SB 1107 “directly conflicts with a primary purpose and mandate of the (Political Reform) Act, as amended by subsequent voter initiatives…”
[Learn more about the case, Howard Jarvis Taxpayers Association v. Brown, here.]
The Courts
NJ.com: ACLU files suit in favor of ‘dark money,’ says donors should be able to give money anonymously
By Ted Sherman
The American Civil Liberties Union went to federal court Tuesday seeking to overturn a measure that would require political action organizations that accept so-called “dark money” in New Jersey to disclose their donors.
In a lawsuit filed in U.S. District Court, the ACLU said the law violates the First and Fourteenth Amendments, and called for an order to restrain the state from enforcing the act.
Gov. Phil Murphy signed the bill into law in June, despite his own reservations over its constitutionality.
“This law discourages people from donating to non-profit organizations that advocate for causes that they believe make people’s lives better,” said ACLU-NJ Legal Director Jeanne LoCicero. “The law sweeps up hundreds of advocacy organizations, including those that don’t take sides in elections, and even some that don’t directly engage in lobbying the government.”…
In its filing, the ACLU said the measure “burdens speech and expressive and associational conduct in a manner that goes far beyond what is permitted by the First Amendment.”
The way the law is written, the ACLU argued that it, too, would also fall under the restrictions of the measure, and said that because it often works on controversial issues of public interest – including litigation and lobbying related to reproductive health, freedom of religion, and the rights of LGBTQ people and immigrants – many of its donors avail themselves of anonymity.
“All nonprofits should be able to speak out on urgent issues of the day without a fear of being subject to disclosure rules that go beyond the bounds of what the Constitution allows,” remarked ACLU General Counsel Terence Dougherty.
In its lawsuit, the group said the ACLU and its state affiliates around the country frequently take positions on behalf of high profile and unpopular clients, issues, and causes.
“There is therefore a reasonable and justifiable concern that public disclosure of the identities of plaintiffs’ respective donors may subject them to harm, threats, harassment, or reprisals by members of the public,” it said.
Reason: Lawsuit Argues That San Francisco’s Anti-NRA Resolution Violates the First Amendment
By Jacob Sullum
Yesterday the National Rifle Association filed a First Amendment lawsuit against the city of San Francisco, arguing that an anti-NRA resolution recently approved by the Board of Supervisors violates the constitutional rights to freedom of speech and freedom of association…
The resolution, which the supervisors unanimously approved last week, absurdly describes the NRA as a “domestic terrorist organization.” Its sponsor, Supervisor Catherine Stefani, is a vehement critic of the NRA who views the organization as the chief obstacle to the gun control laws she favors.
“Such advocacy is Stefani’s constitutional right,” the NRA says. “But just as the Constitution entitles her to criticize and debate the NRA, it forbids her from wielding the powers of her office to suppress or retaliate against the NRA’s exercise of its First Amendment rights….Far from protected government speech, Defendants’ actions constitute a ‘threat[] to employ coercive state power’ against NRA members and entities doing business with the NRA.”
The lawsuit asks for an injunction to prevent enforcement of the resolution, which urges city officials to “assess the financial and contractual relationships our vendors and contractors have” with the NRA and “limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization.”…
The NRA also argues that the city would be violating the First Amendment by forcing contractors to “publicly disclose affiliations that are disfavored by some, and which have no relation whatsoever to the ability of a vendor or contractor to perform requested services or provide requested goods under a government contract.” That sort of inquisition, it says, unconstitutionally compels speech and “would chill a person of ordinary firmness from continuing to speak against gun control, or from associating expressively or commercially with the NRA.”
Washington Post: Court strikes down Montana law barring political robocalls
By Matt Volz, AP
A federal appeals court ruled Tuesday that Montana can’t ban political robocalls based on their content alone, marking the latest in a string of court decisions against U.S. states that attempt to restrict automated phone calls promoting political campaigns.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Montana’s law prohibiting political robocalls – recorded phone messages that advocate for a candidate or seek information for a political campaign – is a violation of the First Amendment’s free-speech protections.
The court has previously upheld other state laws that regulate robocalls, such as those that aim to protect consumers from scams, but those laws were based on how robocalls are made and not on what they say, the judges said.
“In particular, prohibiting political robocalls strikes at the heart of the First Amendment,” Judge Richard Paez wrote in the opinion.
Unless an appeal changes the outcome, the ruling to restrict political robocalls based on content alone applies across the nine Western states within the 9th Circuit’s jurisdiction. It’s also in line with other court decisions across the nation, including an opinion by the 4th Circuit, which oversees four mid-Atlantic states and struck down a similar South Carolina law in 2015.
District courts in Wyoming and Arkansas also have found political robocall laws in those states unconstitutional. The 7th Circuit, which covers three Midwestern states, upheld an Indiana anti-robocall law in 2017, but that court ruled Indiana’s statute did not discriminate by content – the law regulated who may be called, not the message.
Debra Bernard, a partner with the law firm Perkins Coie who last year wrote an article on political robocalls for the National Law Journal , said the U.S. Supreme Court may want to weigh in on the issue in the future, given the important constitutional question it addresses.
“Any restrictions on political speech must be carefully scrutinized as such speech is one of the pillars of our democracy,” she said.
Cook County Record: Appeals panel hears arguments over whether Illinois campaign finance law creates ‘unlevel playing field’
By Dan Churney
A three-judge panel of the U.S. Seventh Circuit Court of Appeals heard arguments Sept. 6 in the case brought by Dan Proft, founder of the political advocacy group Liberty Principles PAC against the state of Illinois, seeking to strike down an Illinois election law that imposes campaign donation limits on so-called independent expenditure committees, while not placing similar restrictions on other campaign finance vehicles.
Proft took legal action in 2018 against the state over the law, which prohibits independent expenditure committees from contributing funds directly to political candidates. Proft argued the law violates constitutional rights to free speech and due process. Elimination of the law would “level the playing field” in a system Proft alleged is canted…
Proft argued if a PAC can coordinate with candidates while making unlimited contributions to their campaigns once the thresholds are reached, IECs should be able to do the same.
In October 2018, U.S. District Judge Virginia Kendall dismissed Proft’s case, finding limits on IECs are constitutional and a “closely drawn means of preventing corruption or its appearance.”
Proft appealed. Oral arguments were heard by Seventh Circuit Judges Frank Easterbrook, Michael Kanne and Michael Brennan.
The Hill: Conservative network files defamation lawsuit against Rachel Maddow, MSNBC
By Zack Budryk
Conservative network One America News Network (OANN) filed a $10 million lawsuit Monday against MSNBC and host Rachel Maddow for calling the company “literally … paid Russian propaganda.”
The lawsuit, filed in the Southern District of California, accuses Maddow of making the claim in retaliation for OANN president Charles Herring accusing Comcast, MSNBC’s parent company, of “anti-competitive censorship” in refusing to carry the network as part of its cable programming, according to the publication.
The lawsuit accuses Maddow of “[knowing] this statement was false” and making it with the intent of damaging the company’s business due to its vocal support of President Trump. It claims that in response to a retraction request, counsel for NBC Universal said Maddow was using “literally” in a figurative sense.
Disclosure
Washington Post: Trump’s critics are targeting his donors, sparking fears of a backlash against disclosure
By Michelle Ye Hee Lee
Organized campaigns to publicly attack President Trump’s political donors have sparked growing concern among conservatives and advocates of greater transparency in political giving, who say donor information is being weaponized ahead of the presidential election.
The efforts – along with the increasingly available information online about donors giving as little as $1 – have reignited questions about how much transparency is too much and whether the laws governing the balance between transparency and privacy are adequate and relevant…
Some advocates for transparency worry that the increasing attacks on political donors could spark a backlash against the disclosure of donor information required under federal law.
The advocates fear the attacks will discourage voters from political giving or steer them into contributing to political nonprofit groups…
“It might drive donors to currently dark-money channels, which we certainly think should have transparency,” said Lisa Gilbert, vice president of legislative affairs at Public Citizen, which advocates for greater transparency in money in politics. The weaponization of donor information is a “whole different, new issue and something that we are concerned about,” she said…
“The Castro thing was an aberration,” said Fred Wertheimer…
Still, Wertheimer said, ideologically driven attacks on donors are not new. It is the “right of citizens to make a determination” to boycott institutions that do not align with their political beliefs, he said…
Many advocates for and against greater disclosure believe the $200 threshold, set four decades ago, is outdated in the era of unlimited super PAC and online donations. Adjusted for inflation, the $200 in 1979 would be roughly $700…
The role of social media in political discourse “is something we have to watch,” Wertheimer said. “It’s not going to justify eliminating disclosure . . . but it’s worth watching because we see so much hostility and attack mode playing out on social media these days that takes us into uncharted waters.”
Congress
Roll Call: Rodney Davis seeks to ban public financing in campaigns
By Kate Ackley
Rep. Rodney Davis said Tuesday he was introducing a bill to ban public financing of congressional campaigns, hitting at a signature piece of House Democrats’ political money overhaul.
“Public financing of campaigns will fill the swamp, and any member who voted for it was voting to fill their own pockets and the pockets of political operatives nationwide,” the Illinois Republican said on the House floor Tuesday afternoon, according to remarks sent out by his office.
Davis’ bill, which is unlikely to move in the Democrat-led House, states that “no federal funds” may be used in support of a Senate or House campaign. It would not affect the presidential public financing system, which no major candidates have used since 2008.
First Amendment
National Review: Viewpoint Neutrality Protects Both Drag Queens and Millions of American Christians
By David French
Late last week I debated Sohrab Ahmari at Catholic University…
Even though the battle over “Frenchism” began with a tweet about drag queens, I honestly did not expect that discussion of drag queens would consume so much of our debate (you can watch the whole thing here). Yet the question of how (or whether) the right should respond legally to drag queens in libraries permeated much of the proceedings. My position was simple – I don’t like drag queen reading hours, but I also want to preserve for all Americans the First Amendment-protected right of viewpoint-neutral access to public facilities when those facilities are opened up for public use. I don’t want the government dispensing access on the basis of its preferred messages or its preferred speakers. Handle bad speech with better speech. Counter bad speakers in the marketplace of ideas, not through the heavy hand of government censorship.
So if my way is inadequate, what was Sohrab’s better plan? I pressed him on this point, and he countered with two ideas. First, hold a Senate hearing where Ted Cruz and Josh Hawley would make the leader of a national library association “sweat.” Second, pass local laws specifically banning the practice…
As our government continues to grow – including by creating an immense number of public facilities – it is quite simply just that taxpayers are able to have equal access to the facilities they paid to create.
Of course that access can be conditioned on adherence to otherwise-applicable statutes (such as existing criminal statutes, including laws prohibiting public indecency), but to grant citizens the ability to use public facilities to spur public debate advances the right of free speech, the right that Frederick Douglass called “the great moral renovator of society and government.” Free speech, “of all rights,” Douglass said, “is the dread of tyrants. It is the right which they first of all strike down. They know its power.”
Online Speech Platforms
Washington Examiner: Facebook and Congress are messing up local elections
By Eric Peterson
The biggest pressure point is the Honest Ads Act, written by Sen. Amy Klobuchar of Minnesota. This legislation goes further in burdening speakers than the current Facebook changes do. It would stop many speakers from being able to use these technologies to get out their message altogether. Ironically, prevention of speaking about the issues has been done in a so-called effort to protect democracy.
While the federal legislation stalled in the Senate after passing the House, there have been state models based off the Honest Ads Act which have become law. Both Washington and Maryland have passed their own versions of the Honest Ads Act, however, this legislation hasn’t resulted in increased transparency and voter awareness of the candidates and issues, as promised by proponents. Instead, the exact opposite has happened.
Large tech companies such as Google and Facebook have found the requirements so burdensome that they have simply stopped running political advertisements completely. Not only does this inflict damage to the democratic process, it adds overly complex legal requirements that prevent new entrants from entering the digital advertising space.
We shouldn’t be surprised that both the government solution and actions of private companies are most likely to burden small speakers in states. Those in Washington or Silicon Valley often have large budgets, staff, and legal teams that insulate them from the damaging effects of more rules and regulations. Facebook, to its credit, understands from its own experience that smaller groups have a difficult time complying and is trying to find less burdensome ways for these speakers to comply with the new rules.
The Media
Wall Street Journal: Impartiality Is the Source of a Newspaper’s Credibility
By Walter Hussman Jr.
During the 19th century, few news organizations existed other than newspapers. Generally they were highly partisan. Around the turn of the century most newspaper publishers came to believe they could get more readers by being fair and objective. When radio and television came along, they pursued the same goals.
But with the internet it was a different story. It is full of not only one-sided information, but plenty of disinformation. So far in the 21st century, we seem to be reverting to 19th-century ideas about news and partisanship. While cable-news networks have all done good journalism, they also feature highly opinionated commentators and shows. The problem is that there isn’t a sharp delineation between news and opinion, creating the perception that CNN, MSNBC and Fox News each have their own agenda…
The solution is for reporters, editors and news executives to look inward, and not only to recommit ourselves to being fair, objective and impartial in our reporting, but to convince the public we are doing it. We also need to separate and clearly label news and opinion.
The best way to do it is through transparency-by publicly stating our core values. But we need to do more. Journalism schools need to adopt similar statement of core journalistic values. The University of North Carolina at Chapel Hill’s journalism school, one of the best in the nation, has decided to do that with an announcement Tuesday. We believe in this so strongly that our family, which has been in the newspaper business 110 years, has made its largest donation ever and is lending our name to the school.
My hope is that more journalism schools, and more news organizations, will adopt a similar statement of core values so the public can hold us accountable to our principles. This offers the best hope for re-establishing Americans’ trust in journalism.
CNN: Activist investor takes a big stake in AT&T, pushing for spinoffs and major changes
By Paul R. La Monica
Meanwhile, President Donald Trump, a frequent critic of CNN and other mainstream media outlets, applauded Elliott’s decision to take an activist stake, adding that he hoped Elliott would try to make changes at CNN.
Trump said in two tweets that the Elliott stake was “great news,” adding that perhaps Elliott “will now put a stop to all of the Fake News emanating from its non-credible ‘anchors.'” Trump also claimed that “because of its bad ratings, it is losing a fortune.”
CNN vice president of communications Matt Dornic shot back in a tweet, saying that “in case you hear differently, CNN is having its most profitable year in history. Last month the network delivered its highest August ratings on record and won the prime time demo – beating both Fox and MSNBC.”
Elliott would not have any operational control over AT&T writ large, let alone WarnerMedia and CNN. It’s also worth noting that Elliott’s stake, while significant, makes it just the sixth-largest institutional owner in AT&T, at a little more than 1%.
The States
Newsday: Public finance panel urged to provide more money in low-income districts
By Michael Gormley
The Public Finance Reform Commission prefaced the first of four statewide public hearings on Tuesday with testimony from invited experts on campaign finance reform. Most of the professors, researchers and good-government advocates agreed the system should provide about $6 in state money for every $1 donated to a candidate in small, individual contributions subject to random audits and restrictions on spending.
One commission member, state Democratic Committee Chairman Jay Jacobs of Nassau County, suggested that qualified candidates in poor districts who join the system could receive perhaps a 12:1 match of state funds…
The experts urged the commission to reduce public funding for “sure winners,” who could be incumbents facing minimal opposition. Some members of the Public Finance Reform Commission also sought ways to keep a donor from gaming the system by preventing him or her from initially making a small contribution that is matched by public funds and then giving the same candidate much larger contributions at a later date.
Other ideas that gained some traction among the experts and some commissioners was to provide a more generous match of state funding to candidates in higher cost areas such as on Long Island, with less to upstate areas. Additional recommendations would limit the size of incumbents’ “war chests” of surplus contributions built up over several campaigns which can scare away challengers. Other ideas being considered include banning contributions by lobbyists and companies that do business with the state.
An objection was raised by the two Republican appointees who were appointed by Senate Minority Leader John Flanagan (R-East Northport) and Assembly Minority Leader Brian Kolb (R-Canandaigua). They complained the Democrats on the commission aren’t also considering a ban on contributions from labor unions, many of which are major donors to Democrats.
